Untitled Texas Attorney General Opinion

July 30, 1952 Hon. Robert S. Calvert Comptroller of Public Accounts Austin, Texas Opinion No. V-1488 Re: Legality of paying mile- age,fees to a sheriff for bringing a defendant in a murder case to Austin under a bench warrant to take a lie detector test at the Department of Dear Sir: Public Safety. Your request for an opinion reads in part as follows: "This Department has received a Dls-- : trict Court Fee Bill from the sheriff of Sutton County,:a fee county, for taking a defendant on a bench warrant in a murder case from Sonora to Austin, and return to Sonora. "The defendant was indicted on Sep- tember 4, 1951, on a murder charge. On November 29, 1951, the District Judge of the 112th Judicial District Court in and for Sutton County issued a bench warrant commanding the sheriff of Sutton County to take the defendant to Austin.before the proper officer of the Department of Public Safety, and have him there,on December 7, 1951, at or before nine A.M. to take what " is commonly called a lie detector test; and to keep him there for the purpose of said examination and to return hlm~safely to the county jail of Sutton County, Tex- as, when the test was completed. "This Department requests your opinion as to,whether the sheriff of Sutton County is entitled to mileage fees under the provi- sions of Article 1030 C.C.P. for conveying . . Hon. Robert S. Calvert, page 2 (v-1488) said defendant from Sutton County to Austin and return. In the event you hold these fees are Dayable, would each mile traveled in takingthe defendant to Austin, and re- turning him to Sqora, be at the rate of 15$!per mile for the prisoner, and 15$ per mile for the sheriff, at a total rate of 30# per mile?" Subdivision 4 of Article 1030, V.C.C.P., pro- vides: "For removing a prisoner, for each mile going and comlng;includlng guards and all other expenses, when traveling by railroad, ten cents; when traveling other- wise than by railroad, fifteen cents; pro- vided, that when more than one prisoner is removed at the same time, in addition to the foregoing, he shall only b,eallowed ten cents a mile for each additional prisoner." This office has heretofore held that the Comptroller Is authorized to Issue warrants for the payment of mileage fees incurred by a sheriff In the execution of "bench warrants" compelling the appear- ance of persons in a case pending before the court which issued the "bench warrant. Att'y Gen. Ops. 2967 (1935), 3011 (1937), v-1008 (1950), and v-1030 (1950)- On the other hand it has been held by this office that warrants may not be issued to pay mileage fees for the execution of "bench warrants" not Issued to compel the attendance of any person in a case or in any manner necessary to the enforcement of the court's jurisdiction of any person. Att'y Gen. Op. O-4087 (1941) and Letter Opinion to Honorable George H. Sheppard, Comptroller of Public Accounts, dated August 1, 1935. It is stated in the opinion dated August 1, 1935: "You are advised that in my opinion the sheriff would be entitled to his fee as provided for in the statutes by reason of serving process of the court for going .’ . Hon. Robert S. Calvert, page 3 (v-1488) to the penstentiary and returning this prisoner to,his county. ,He would~not be entitled to a fee for returning the prlson- er to the penitentiary as In my opinion the District Judge has no authority to issue a bench warrant or any other process order- ing the sheriff to deliver a prisoner to any other jurisdictlon. Thl~swould be a matter for the penitentiary authorities to handle and It would be their duty to deliver this prisoner back to the peni- tentiary." In Attorney Gi?neral'sOpinion O-4087 It was said: ?'Nelther the caplas nor bench warrant is required to be rec.ognlzedby the Federal authorities who ho,ldthe person as a Federal prisoner. Since they turned over to,,the,~ sheriff their prisoner, at which tlme~It is presumed the arrest was made, he then be- P came the prisoner of the sheriff whose duty extended no further than to convey him back to his own county jail or to bring him before the court issuing the bench warrant. lp~so .. far as the Federal authorities or the bench. warrant is concerned, requiring him to return ~. the prisoner to the Federal jail after-trial on the felony charge, fees for mileage so ~lnourredare not provided for nor within the purview of the statute. "When we,look to the above subdivision 4 of the article and attempt to apply it alone to the facts, the sheriff, though armed with both a caplas and bench warrant in going to the jail In Austin, was not traveling for the purpose of removing a prisoner. We can- not extend the meaning of the word 'prisoner' to include Federal prisoner, One outside the reach of the processes of a State court. Under the foregoing facts, subdivision 1 is to be construed with subdivision 4, and since the sheriff In going to the jail in Austin was traveling 'in going to the place of ar- rest,' he is allowed mileage on return with his prisoner as provided in subsectl6n 4, but not without further limltation~ Such Hon. Robert S. Calvert, page 4 (v-1488) mileage fee a.p@earsby the'proyl,slonsof subdivls'ion1, to be retitric'tedby.the lan- guage 'for conveying the prisoner'orprison- ers to jail.I ' The statute does not allow mileage for shy farther point or terminus after making an arrest and for removing a prisoner, than the jail over which the' sheriff is keeper. "Statutes prescribing fees for public officers'are strictly construed and the sheriff is entitled to such fees as stat- utes authorize. Blgham v. State, 27'5S.W. 147, judgment reversed (Corn.of Ape.), 280 S.W. 1062. "It is therefore the opinion of 'this department that the sheriff, under the facts sentforth, is not entltled to mileage fees for returning the prisoner after trial on a felony charge to the Federal jail in San Antonio." The "bench warrant" in question was not Issued to enforce the court's jurisdiction of the prisoner or to compel his attendance in a case, but was issued for the purpose 'of having.whatis commonly called a lie detector test made upon him, to which the defendant and his attorney have agreed In writing," We how of no statute authorizing the State to oas mileage fees incurred in the execution of "bench warrants" of-this nature. You are therefore advised that the sheriff In question Is snot entitled to mile- age fees from the State In the Instant case. SUMMARY Under existing State statutes the State is not liable for mileage fees incur- red by a sheriff in the execution of a "bench warrant' commanding the sheriff to take a defendant from a county having Hon. Robert S. Calvert, page 5 (v-1488) jurisdiction of the defendant to Austin for the purpose of taking a lie detector test at the Department of Public Safety. Yours very truly, APPROVED: PRICE DANIEL Attorney General J. C. Davis, Jr. County Affairs Division E. Jacobsop Reviewing Assistant Charles D. Mathews First Assistant JR:am